The Office of Administrative
Hearings
The Fifth Annual Report
to
Governor Jane Dee Hull
Senator Brenda Burns, President of the Senate
Representative Jeff Groscost, Speaker of the House
Pursuant to A.R.S. §41-1092.01(C)(5)
and
A.R.S. §41-1092.01(C)(9)
Cliff J. Vanell, Director
November 1, 2000
18
I.
Introduction and Overview
The Office of Administrative Hearings (OAH) was created pursuant to Laws 1995, Chapter 251,
adding Arizona Revised Statutes §41-1092 et seq., and commenced operation on January 1, 1996.
Administrative hearings previously provided by regulatory agencies (except those specifically exempted) were transferred to the OAH for independent proceedings. There are two OAH locations,
Phoenix and Tucson, with 34 full-time positions, including the Director, the Chief Executive Assistant,
2 Case Management Supervisors, the Office Manager, 18 Administrative Law Judges (ALJ), 2
Hearing Officers, and 9 support staff. In addition to conducting hearings in Phoenix and Tucson, the
OAH travels nearly four weeks per month on rotation to Flagstaff, Lake Havasu, Prescott, Show Low,
Sierra Vista, and Yuma. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.”
Responsibility:
The OAH understands its responsibility to create a system that is efficient and cost effective.
The statistics of the OAH in FY 2000 indicates Agency acceptance of ALJ recommended orders
without modification was 90.85%. Acceptance of Findings of Fact and Conclusions of Law
without modification was 96.29%. Rehearings (0.77%) and appeals (1.35%) were rare. Evaluations by participants continue to indicate that ALJs and the OAH were rated excellent or good in
92% - 97% of responses.
Integrity:
The OAH takes its statutory mandate to provide fair, impartial and independent hearings seriously. Although part of the Executive branch, together with its client agencies, the OAH maintains a conscious detachment from political issues and the missions of the other agencies.
Procedures, rulings, and case assignment are at all times kept free of outside pressures to
ensure that all parties can be assured that hearings are impartial and independent.
Commitment:
The OAH views commitment as a willingness to advance its mission. The OAH may on occasion take a position that conflicts with the predisposition of a client agency. Although the OAH
works to accommodate legitimate needs of an agency, the OAH does so only in a way consistent with the fairness, impartiality, independence and efficiency of its hearings. The OAH recommends that A.R.S. §8-201 better define “physical injury” as it relates to abuse in hearings conducted by the OAH pursuant to A.R.S. §8-811 due to the range of reasonable interpretations and
the resulting inconsistency in our adjudication. A detailed analysis of the problem may be found
in the “Recommendations” section of this report.
Efficiency:
Through careful case management, the OAH enjoys a minimal backlog. In FY 1999, the OAH
conclusion rate was 92.6% (7.4% more cases filed than concluded). In FY 2000, despite the
112.7% increase in filed cases (3336 to 7096 ), the conclusion rate increased to 98.2% (1.8%
more cases filed than concluded), illustrating the effectiveness of the cross-training of the former
AHCCCS hearing officers since July 1, 1999. Cross-training of judges continues to result in real
benefits to taxpayers and parties alike. First, ALJ time can be leveled out to avoid one ALJ
assigned in a single area to be underutilized while an ALJ assigned in another area cannot meet
existing challenges. Secondly, personal and professional growth, collegiality and a larger focus
encourages more creativity and better problem-solving.
1
II. Continued Development of the Office
1. Incorporation of AHCCCS Hearing Function
Commencing July 1, 1999, a total of 9 positions were transferred to the OAH, including 7 hearing
officers from the Arizona Health Care Cost Containment System (AHCCCS). The AHCCCS
appeals function has been successfully incorporated into the OAH venue.
2. Development of Administrative Law Judge Cadres
A.R.S. §41-1092.01 makes explicit the requirement that the OAH provide technical training to
administrative law judges. In addition, A.R.S. §41-1092.07 created a statutory right to file a
nonperemptory motion with the OAH Director to disqualify an administrative law judge for bias,
prejudice, personal interest or lack of technical expertise necessary for a particular hearing. In
FY 2000, in addition to training, which included Bar sponsored continuing legal education, privately presented courses, as well as contracted presentations, the OAH provided 40 hours of
continuing education opportunities to each administrative law judge to ensure professional
development.
3. Report of the Underground Storage Tank Technical Appeals Pilot
Program
Pursuant to Laws 1998, Chapter 298, Section 19 (HB 2231), OAH submitted its evaluation of
the Underground Storage Tank Technical Appeals Panel on December 1, 1999, to the Governor,
the President of the Senate and the Speaker of the House. The report is found in Appendix 1.
4. Amendment of Supreme Court Rule
Pro Hac Vice petitions may now be made before OAH Administrative Law Judges pursuant to a
recent change to Supreme Court Rule 33(d). Such petitions, if granted, allow non-Arizona
attorneys to practice before the OAH. The new rule is found in Appendix 3.
5. Newsletter
The OAH has completed publication of four editions of the OAH Newsletter on a quarterly basis
during FY 2000. The Newsletter reports various performance measures and discusses current
issues. The Newsletter now includes articles written by administrative law judges that include
practice pointers. All articles appear on the OAH website, along with the OAH performance
measures. Copies of the four editions published in FY 2000 are included in Appendix 2.
6. Externship
Mindful of our responsibility to aid in the advancement of justice, the Office of Administrative
Hearings applied and was again approved for an ASU Law Student Externship. The externship
was created to be 180 hours of education and skill building within the particular field of Arizona
Taxation Administrative Law. One Administrative Law Judge trained and supervised the law
student in addition to normal case load processes.
2
III. Summary of Agency use of OAH Services
1.
Case Management
a. Breakdown of Cases Filed by Agency (FY 2000)
A total of 7,796 cases were filed with the OAH in FY 2000. The distribution among the agencies
and boards are as follows (in descending order by number of cases filed):
Arizona Health Care Cost Containment System
Registrar of Contractors
Department of Health Services
Department of Economic Security - CPS
Department of Environmental Quality
Department of Building and Fire Safety
Department of Revenue
Department of Administration-Capitol Police Parking
Department of Public Safety - Adult Care Clearance
Department of Insurance
Liquor Licenses and Control
State Board of Nursing
Arizona State Board of Accountancy
Department of Real Estate
Arizona State Board of Cosmetology
Arizona State Banking Department
Structural Pest Control Commission
Peace Officers Standards and Training
Board of Medical Examiners
Department of Public Safety - Student Transportation
Department of Racing
Department of Administration
State Land Department
Department of Water Resources
Board of Dental Examiners
Department of Economic Security - Child Protective Services
Department of Gaming
Department of Weights and Measures
Arizona Lottery
Department of Public Safety - Concealed Weapons Permit Unit
Board of Appraisal
Board of Behavioral Health Examiners
Board of Psychologist Examiners
Board of Technical Registration
Maricopa County Housing Department
Arizona Commission on the Arts
Arizona Department of Education
Board of Chiropractic Examiners
Secretary of State
Agricultural Employment Relations Board
Arizona State Schools for the Deaf and the Blind
Arizona Works-Maximus-(DES)
Department of Economic Security
Department of Education
Office of the Attorney General
3
3706
1529
318
267
151
146
127
125
112
107
82
73
60
53
36
24
23
20
14
14
14
13
11
9
8
8
7
5
4
4
3
3
3
3
3
2
2
2
2
1
1
1
1
1
1
b. Number of Cases Filed versus Cases Concluded
The number of cases filed increased in FY 2000 as it had in FY 1999 and FY 1998. The OAH
was able to increase its conclusion rate to accommodate the increase. The completion rate for
FY 2000 ,defined as cases concluded over new cases filed, was 98.2%.
Comparison of Cases Filed v. Cases Concluded
8000
6970 7096
7000
6000
Cases
5000
Cases Concluded
4000
3000
3092
3336
Cases Filed
2357 2498
2000
1000
0
FY1998
FY1999
FY2000
The following diagram illustrates that, in most cases, matters proceed to hearing. Matters which
are vacated indicate that some portion of the OAH hearing calendar is taken up unnecessarily.
Statute calls for the setting of hearings within 60 days of a request for hearing by an agency in a
“contested case” and within 60 days of an appeal of an “appealable agency action”. Although an
argument could be made that such timelines inevitably result in unnecessary hearing settings,
case management at the OAH discourages cases being “on hold” or riding the calendar. Generally a matter is vacated from the first hearing setting as the result of settlement. Therefore, on
the whole, statutory time limits are beneficial to the larger process of regulatory action.
4
Disposition of Concluded Cases FY 2000
Vacated by
ALJ
44%
Vacated by
Agency
2%
Hearing
Conducted
54%
c. Timeline of Case Management
A.R.S. §41-1092.05(A) and §41-1092.08(A) and (B) contemplate a rigorous timeline to expedite
hearings and final agency actions. “Appealable agency actions” (defined as actions taken by an
agency without a prior hearing) are required to be set for hearing within 60 days of a request by a
party. “Contested cases” (defined as proposed actions for which a hearing is required) are
required to be set within 60 days of an agency request. Administrative decisions must be transmitted to the agencies within 20 days of the conclusion of the hearing. The directors and boards
are required to take final action within 30 days of receipt.
The following diagram illustrates the average timelines:
Average Days Between Selected Events - Appealable Agency
Actions v. Contested Cases FY 2000
60
52.9
50
44.9
cases
40
30
19.3
20
10
7.1
1.53 3.4
16.2
10.2
0
Request for
Hearing to
Scheduling
Scheduling to
First Hearing
Date
5
Conclusion of
Hearing to ALJ
Decision
ALJ Decision
to Agency
Action
AAA
CC
d. Incidence of Continuance
A single continuance translates to an average of 47 days to the length of a case. 68.54% of all
continuance requests were granted in FY 2000, down from 70.68% in FY 1999. The OAH has
developed a well-deserved reputation for discouraging “convenience” continuances in favor of
those based on “good cause”. This accounts for the high conclusion rate versus new settings
(98%), despite a 112% increase in caseload. The frequency of continuance, defined as the
number of continuances granted (961) over the total number of cases first scheduled (7060),
expressed as a percent, was 13.61%. The ratio of first settings (6869) to continued settings on
the calendar (784) was 1 to 0.114.
Comparison of Source of Continuance, FY 2000
6.51%
Continuance upon motion
of agency
Continuance upon motion
of non-agency party
93.49%
The following list indicates the number of continuances made by agency. Indicated also are the
6
continued settings in FY 2000, divided by those made by a non-agency party and those made by
the agency.
AGENCY
Continued Motion by nonagency party
AHCCCS
206
Department of Revenue
38
Registrar of Contractors
272
Arizona State Board of Accountancy
13
Department of Real Estate
5
Board of Technical Registration
2
Department of Administration
1
Department of Economic Security - CPS
19
Department of Health Services
69
Department of Water Resources
2
Liquor Licenses and Control
13
Department of Insurance
19
Department of Public Safety - Student Transportation3
Department of Building and Fire Safety
17
Department of Economic Security
5
Board of Medical Examiners
9
State Land Department
2
Department of Environmental Quality
20
Peace Officers Standards and Training
2
Structural Pest Control Commission
3
State Board of Nursing
1
Arizona State Banking Department
2
Board of Dental Examiners
4
Maricopa County Housing Department
1
Department of Public Safety - Adult Care Clearance 4
Office of the Attorney General
1
Continued Motion by
agency party
9
2
3
10
1
0
1
3
16
0
1
0
0
0
0
0
0
3
1
0
0
0
0
0
1
0
2. Evaluation
a. Results of Public Evaluation
Since November 1996, the OAH has administered an evaluation procedure. At the conclusion of every
hearing, evaluations are handed out to four major groups of respondents: Represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The results are not disclosed
to the administrative law judge. The respondents are asked to rate the following categories, on a scale of
excellent, good, satisfactory, poor:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
7
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
The results indicate that satisfaction is high among all groups, with those responding rating the
OAH excellent to good in all categories. An analysis of the unrepresented parties for a sample
quarter indicates that even among this most vulnerable group, the OAH is seen to be functioning
well.
All Responses FY 2000
1800
1600
1400
Excellent
Good
Average
Poor
1000
800
600
400
200
0
1
2
3
4
5
6
7
8
9
Unrepresented Responses FY 2000
1200
1000
Responses
Responses
1200
Excellent
Good
Average
Poor
800
600
400
200
0
1
2
3
4
5
6
7
8
8
9
The following diagram illustrates that 93% to 97% of participants evaluating the OAH process
responded that the OAH was excellent or good in all categories.
E v a lu a t io n s A ll R e s p o n s e s F Y 2 0 0 0
1 2 0 .0 0 %
9 7 .5 9 %
1 0 0 .0 0 %
9 6 .8 2 %
9 6 .6 1 %
9 6 .2 2 %
9 3 .8 9 %
9 4 .2 3 %
9 2 .3 9 %
9 5 .0 7 %
9 4 .5 9 %
RESPONSES IN %
8 0 .0 0 %
E XC E L L E N T /G O O D
A V E R A G E
P O O R
6 0 .0 0 %
4 0 .0 0 %
2 0 .0 0 %
0 .0 0 %
1
4 .2 5 %
1 .8 7 %
3 .1 9 %
0 .5 9 %
2 .7 3 %
0 .4 5 %
2 .0 4 %
0 .3 7 %
2
3
6 .7 7 %
4 .0 5 %
1 .7 1 %
4
5
5 .2 3 %
0 .8 3 %
0 .1 8 %
6
7
4 .1 7 %
0 .7 7 %
8
3 .0 0 %
0 .3 9 %
9
Q U E S T IO N S
b. Incidence of Rehearing/Appeal
In FY 2000, the rehearing rate (defined as rehearings scheduled over cases concluded) was
.77% The judicial appeal rate (defined as judicial appeals taken over cases concluded) was
1.35%. As reflected in the following diagram, rehearings and judicial appeals in FY 2000 were
relatively rare. Both were concentrated at the Registrar of Contractors. Registrar cases are
primarily contests between two private litigants (homeowner/contractor; contrator/subcontractor).
Judicial Appeals and Rehearings FY 2000
60
51
50
40
Appeals
Rehearings
28
30
19
20
10
4
2
21
4
5
1
2
12
1
1
1
1
1
Ar
iz
on
a
H
ea
lth
C
on
os
tC
ar
e
C
R
eg
is
t
ra
r
of
C
on
tra
ct
or
ta
s
i
nm
D
ep
en
ar
Ar
t
tm
Sy
iz
on
en
st
D
em
a
to
ep
D
fI
ep
ar
ns
tm
ar
ur
tm
en
an
en
to
ce
to
fE
fE
co
no
du
m
ca
ic
tio
Bo
Se
n
ar
cu
d
of
rit
y
M
D
-C
ed
ep
N
at
PS
ic
ar
ur
al
tm
op
Ex
e
at
nt
am
hi
of
c
in
H
Bo
er
D
ea
s
ar
ep
lth
d
ar
of
Se
tm
M
r
en
v
e
D
ic
di
to
ep
es
ca
fP
ar
lE
tm
ub
xa
en
lic
m
to
Sa
in
fA
er
fe
s
ty
dm
-A
Ar
in
is
iz
du
t
on
ra
lt
tio
a
C
ar
St
n
e
at
Cl
e
Ba
ea
ra
nk
nc
in
D
e
g
ep
D
ar
ep
tm
ar
en
tm
to
en
D
fR
t
ep
St
ea
ar
at
tm
l
e
Es
en
La
ta
to
nd
te
fB
D
ep
ui
ld
ar
in
t
m
g
en
an
t
d
D
Fi
St
ep
r
ru
e
ar
ct
Sa
tm
ur
fe
en
al
ty
to
Pe
fR
st
ev
C
on
en
tro
ue
lC
om
m
is
si
on
0
9
1
IV.
Acceptance of ALJ Decisions by Agencies
1. Agency Action
Agency acceptance of the OAH decisions is very high. 90.85% of all decisions acted upon by
the agencies (that is, excluding .89% of decisions certified as final due to agency inaction) are
accepted without modification. Agency acceptance was 96.29% if viewed from the vantage point
of acceptance of Findings of Fact and Conclusions of Law, the core function of the administrative law judge. The vast majority (76.67%) of modifications were in the Recommended Order
(penalty portion).
Agency Response FY 2000
A mended
Finding/Co nclusio ns o f Law
o nly
1.65%
Rejected
2.06%
A mended Order o nly
5.44%
A ccepted witho ut
M o dificatio n
90.85%
The following chart reports the number of cases in the various categories of agency response.
6000
5160
5000
4000
3000
2000
94
117
51
Amended
Finding/Conclusions
of Law only
Rejected
Certified
309
1000
Amended Order only
Accepted without
Modification
0
10
The following chart reports the breakdown by agency. This illustrates that modifications and
rejections are few relative to the decisions accepted.
Accept
Arizona Commission on the Arts
Arizona Health Care Cost Containment System
Arizona Lottery
Arizona State Banking Department
Arizona State Board of Accountancy
Arizona State Board of Cosmetology
Board of Appraisal
Board of Chiropractic Examiners
Board of Dental Examiners
Board of Medical Examiners
Board of Technical Registration
Department of Administration
Department of Administration-Capitol Police Parking
Department of Agriculture
Department of Building and Fire Safety
Department of Economic Security /CPS
Department of Environmental Quality
Department of Health Services
Department of Insurance
Department of Public Safety - Adult Care Clearance
Department of Public Safety - Concealed Weapons Permit Unit
Department of Public Safety - Student Transportation
Department of Racing
Department of Real Estate
Department of Water Resources
Liquor Licenses and Control
Maricopa County Housing Department
Office of the Attorney General
Peace Officers Standards and Training
Registrar of Contractors
State Board of Nursing
State Land Department
Structural Pest Control Commission
Department of Gaming
11
2
2677
2
8
25
1
0
2
2
9
4
1
23
1
117
194
179
312
80
69
2
11
9
36
1
47
2
1
2
1279
34
9
0
0
Modify
Penalty
0
81
0
0
2
12
1
0
2
8
0
0
0
0
3
1
1
1
0
1
0
2
0
1
0
1
0
0
0
185
0
1
4
0
Modify
Fact/law
0
64
0
0
0
0
0
0
0
1
0
0
0
0
0
13
2
5
1
0
0
0
0
0
0
0
0
0
1
6
0
0
0
1
Reject
0
85
0
0
0
0
0
0
0
2
0
2
0
0
0
7
1
4
3
1
0
0
0
0
0
0
0
0
0
10
1
0
0
0
Page 12 amended December 26, 2000. Affected language indicated in italics.
In FY 2000, OAH rendered a decision contrary in whole or in part to an agency’s original position in
22.43% of cases. Agency acceptance of contrary decisions is high (81.57%). The following diagram indicates the breakdown by agency.
Recommendations Contrary to Original Agency Position FY 2000
ALJ Decision Contrary in
Whole or in Part
22.43%
ALJ Decision Affirms Agency
Position
77.57%
The following two charts show a breakdown by agency of its response to contrary decisions and the
relative numbers and percentages of the responses.
Accepts
Amends Facts
Rejects
Law
DPS - Adult Care
AHCCCS
Building and Fire Safety
Administration
Banking
DPS - Bus
Bd. Of Cosmetology
Board of Dental Examiners
Capitol Police parking
Department of Economic Security - CPS
DPS - Concealed Weapons
Department of Education
Department of Environmental Quality
Department of Health Services
Department of Insurance
Board of Accountancy
Liqor Licenses and Control
Department of Racing
Department of Real Estate
Registrar of Contractors
Board of Nursing
Board of Appraisal
Physicians Assistants
3
206
10
0
1
2
1
0
11
15
1
0
3
14
15
3
1
1
8
33
0
0
0
0
25
0
0
0
0
0
0
0
9
0
0
0
2
0
0
0
0
0
1
0
0
0
12
Amends
Order
1
77
0
2
0
0
0
0
0
8
0
0
0
3
2
0
0
0
0
1
1
0
1
0
49
2
0
0
0
1
2
0
0
0
0
0
1
0
0
1
1
1
1
0
1
0
Agency Response to Contrary Recommendations FY 2000
350
300
328
Cases
250
200
150
96
100
50
60
37
0
Agency Accepts Contrary
Agency Amends
Recommended Decision
Findings/Law , but
w ithout Modification
Accepts Contrary Order
62.95%
7.1%
Agency Rejects Contrary
Recommended Decision
18.43%
Agency Amends Order,
but Accepts Findings of
Fact/Law 11.52%
2. Agency Inaction With Subsequent OAH Certification of Finality
Beginning August 21, 1998, the OAH was required to certify its recommended order as the final
administrative decision if OAH has not received the agency, board or commission’s action
accepting, modifying or rejecting the recommended decision within 30 days of transmission.
See A.R.S. §41-1092.08(D). Special rules apply if the board or commission meets monthly or
less frequently. See A.R.S. §41-1092.08(D). In FY 2000, 53 recommended decisions were
certified as final administrative decisions.
Arizona Health Care Cost Containment System
Department of Economic Security - CPS
Registrar of Contractors
Arizona State Board of Accountancy
Department of Building and Fire Safety
Liquor Licenses and Control
Department of Environmental Quality
Department of Weights and Measures
Department of Insurance
Structural Pest Control Commission
Naturopathic Board of Medical Examiners
Department of Racing
Board of Technical Registration
Department of Health Services
Department of Public Safety - Student Transportation
Secretary of State
10
8
8
6
5
2
2
2
1
1
1
1
1
1
1
1
13
Page 14 amended December 26, 2000. Affected language indicated in italics.
V. Motions For Change of Administrative Law
Judge Granted Pursuant to A.R.S. §41-1092.07
Pursuant to A.R.S. §41-1092.01(C)(9) (b), the OAH reports that 10 motions for change of judge were
filed pursuant to A.R.S. §41-1092.07(A) for bias or prejudice. One motion was granted on the basis
of the appearance of bias.
VI.
Violations of A.R.S. §41-1009.
Pursuant to A.R.S. §41-1092.01(C)(9) (c), the OAH reports that it has no knowledge of violations of
A.R.S. §41-1009 by any agency.
VII.
Recommendations for Changes in the
Administrative Procedures Act
Uniformity:
The regulated community has long complained about inconsistent procedures among the
various agencies. The following recommendations are meant to point to the areas where
greater consistency can be accomplished:
1. Establish uniform standards for appeal rights notice.
Currently there are no standards for how, and with what degree of specificity, appeal
rights should be communicated to parties once the agency has acted.
2. Establish uniform basis for rehearing.
Parties must research the specific rules of each agency, board or commission to determine the bases for rehearing since there is little uniformity. Standardizing and recapitulating bases in Title 41 would make the process easier, particularly for the unrepresented.
3. Expand the right to settlement conferences to include “contested cases”.
A.R.S. §41-1092.03 provides that appellants to “appealable agency actions” be entitled to
settlement conferences with an agency representative. No such right exists for “contested cases”, which include most disciplinary proceedings. Such a conference may be
beneficial in expediting disposition of cases.
4. Conform Rehearing and Appeal Rules.
Currently parties have 30 days from service of an agency’s final action, presumed after 5
days of mailing to the party’s last known address, to request a rehearing under A.R.S.
§41-1092.09(A)(1) and A.R.S. §41-1092.09(C). However, pursuant to A.R.S. §12-904(A),
parties have 35 days to file an appeal to Superior Court upon service, presumed after 5
days of mailing to the party’s last known address. Conforming the time limits for filing
appeals and requesting rehearings will simplify the process by eliminating varying time
limits for parties to act on final orders and will allow agencies to frame the effective dates
of their final orders to a single date.
14
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
123456789012345678901234567890121234567890123456789012345678901212345678901234567890123456789012
VIII.
Recommendation for Changes or
Improvements In Agency Practice With Respect
to the Administrative Procedures Act
Statutory Guidance in Definition of “Physical Injury” under A.R.S.
§8-201
As of June 30, 2000, the OAH has conducted in excess of 760 hearings under A.R.S. §8-811.
The statutory scheme provides that those who are facing substantiation of reports of child abuse
or neglect, and therefore deposit of these reports in the State’s Central Registry for 25 years, be
accorded the right to have the State demonstrate “probable cause” before the OAH’s independent tribunals. Experience has shown that the current scheme is inadequate or uncertain in a
key area requiring statutory clarification.
Title 8 does not define “physical injury” as it applies to abuse under A.R.S. §8-201. One position
is that the statute is one of strict liability. Under that viewpoint, any physical injury, if observeable,
constitutes abuse. This is true regardless of how minimal, or whether it is sustained by a child
as a consequence of parental discipline or attempts to control the behavior of a child, or even as
the result of accident. Another viewpoint sees the terms, “infliction of or allowing” physical injury
found in A.R.S. §8-201 as requiring some minimal bad intent, thus allowing reasonable mitigation
in cases of manifest accident. Still another position applies the defenses to assault found in
A.R.S. §13-403 to the concept of “physical injury” to recognize some leeway in parental discipline.
In the absence of clear standards, some Administrative Law Judges apply the definition of
“physical injury” found in A.R.S. §13-3623(A)(4), or use it for guidance. These judges are generally uncomfortable using the Title 13 statute, but at the same time feel obligated to have at least
some statutory foundation for their determinations as to when there has been “abuse” as defined
in Title 8. In either of these situations, Administrative Law Judges may or may not apply the
defenses of A.R.S. §13-403, depending on whether abuse is considered strict liability. Other
Administrative Law Judges, finding the use of the criminal statutes inappropriate, because of lack
of notice to the appellant, do not apply either A.R.S. §13-3623(A)(4) or A.R.S. §13-403. In many
cases physical injury is so manifest, and so obviously the result of intentional unjustified acts,
that the lack of definition presents no difficulty. However, many situations which are not obvious
cases of abuse can become subjective ad hoc decisions. Likewise, similar facts may be viewed
differently by different Administrative law Judges, resulting in opposing orders.
15
APPENDICES
1. Report of the Underground Storage Tank
Technical Appeals Pilot Program
2. Amendment of Supreme Court Rule 33(d)
3. Newsletters
16
Contents
I. Introduction and Overview………………………………………………………...................1
II. Continued Development of the Office....................................................………………........2
1. Incorporation of AHCCCS Hearing Function…………………………...................2
2. Development of Administrative Law Judge Cadres...............................................2
3. Report of the Underground Storage Tank Technical Appeals Pilot Program 2
4. Amendment of Supreme Court Rule ................................................................. 2
5. Newsletter ............................................................................................................ 2
6. Externship ........................................................................................................... 2
III. Summary of Agency use of OAH Services .................................................................. 3
1. Case Management ............................................................................................. 3
a. Breakdown of Cases Filed by Agency (FY 2000) ............................................. 3
b. Number of Cases Filed versus Cases Concluded ............................................ 4
c. Time line of Case Management ........................................................................ 5
d. Incidence of Continuance ................................................................................. 6
2. Evaluation ............................................................................................................ 7
a. Results of Public Evaluation .............................................................................. 7
b. Incidence of Rehearing/Appeal .......................................................................... 9
IV. Acceptance of ALJ Decisions by Agencies ............................................................. 10
1. Agency Action ................................................................................................... 10
2. Agency Inaction ................................................................................................ 13
V. Motions For Change of Administrative Law Judge Granted Pursuant to
A.R.S. §41-1092.07 ...................................................................................................... 14
VI. Violations of A.R.S. §41-1009. .................................................................................. 14
VII. Recommendations for Changes in the Administrative Procedures Act ............. 14
1. Establish uniform standards for appeal rights notice. ................................... 14
2. Establish uniform basis for rehearing. ............................................................ 14
3. Expand the right to settlement conferences to include “contested cases”. 14
4. Conform Rehearing and Appeal Rules ............................................................ 14
VIII. Recommendation for Changes or Improvements In Agency Practice With
Respect to the Administrative Procedures Act .................................................... 15
Statutory Guidance in Definition of “Physical Injury” under A.R.S. §8-201 ...... 15
Appendices ....................................................................................................................... 16
1. Report of the Underground Storage Tank Technical Appeals Pilot Program
2. Amendment of Supreme Court Rule 33(d)
3. Newsletters
17